1711220 (Refugee)

The Tribunal reviewed a decision to cancel the protection visas of two applicants who arrived in Australia in November 2010. The applicants had applied for protection visas based on their interfaith marriage, fearing persecution in Pakistan due to the first applicant's Christian faith and the second applicant's Muslim faith. Their application was initially refused by a delegate of the Minister, who was not satisfied as to the genuineness of the marriage or the provided Nikah Nama (Islamic marriage contract). However, a subsequent review by the Tribunal remitted the matter to the Department, finding the applicants satisfied the criteria for protection visas, and they were subsequently granted these visas in January 2013. In July 2016, a notice of intention to cancel their visas was issued, alleging that the Nikah Nama provided was a "bogus document" and that the applicants had provided incorrect information regarding their marriage, which was fundamental to their protection claims.

The legal issues before the Tribunal were whether the notice of intention to cancel the visas, issued under section 107 of the Migration Act 1958, was valid, and if so, whether there had been non-compliance by the visa holders as described in the notice. If non-compliance was established, the Tribunal also had to consider how the discretion to cancel the visas should be exercised. The applicants contended that the particulars provided in the section 107 notice were insufficient to meet the statutory requirements.

The Tribunal found that the notice issued under section 107 was not valid. It reasoned that a valid section 107 notice, which must provide particulars of the possible non-compliance, is a statutory precondition for the exercise of the power to cancel a visa under section 109. The Tribunal relied on case law, including *Minister for Immigration and Citizenship v Brar*, which emphasised that while a section 107 notice is not a formal charge, it must provide sufficient particulars to allow the visa holder to understand the allegations and have an opportunity to respond. The Tribunal concluded that the particulars in the notice were unclear and therefore insufficient for the purposes of section 107(1)(a) of the Act.

Consequently, the Tribunal set aside the decision to cancel the first applicant's protection visa, substituting a decision not to cancel it. The Tribunal stated it had no jurisdiction with respect to the second applicant.